DRAFT Full Text of State Laws Re: Electronic Monitoring

Transcription

1 ILLINOIS Illinois - HEALTH FACILITIES AND REGULATION (210 ILCS 32/) Authorized Electronic Monitoring in Long-Term Care Facilities Act. (210 ILCS 32/1) Sec. 1. Short title. This Act may be cited as the Authorized Electronic Monitoring in Long- Term Care Facilities Act. (Source: P.A , eff ) (210 ILCS 32/5) Sec. 5. Definitions. As used in this Act: "Authorized electronic monitoring" means the placement and use of an electronic monitoring device by a resident in his or her room in accordance with this Act. "Department" means the Department of Public Health. "Electronic monitoring device" means a surveillance instrument with a fixed position video camera or an audio recording device, or a combination thereof, that is installed in a resident's room under the provisions of this Act and broadcasts or records activity or sounds occurring in the room. "Facility" means an intermediate care facility for the developmentally disabled licensed under the ID/DD Community Care Act that has 30 beds or more, a long-term care for under age 22 facility licensed under the ID/DD Community Care Act, or a facility licensed under the Nursing Home Care Act. "Resident" means a person residing in a facility. "Resident's representative" has the meaning given to that term in (1) Section of the Nursing Home Care Act if the resident resides in a facility licensed under the Nursing Home Care Act or (2) Section of the ID/DD Community Care Act if the resident resides in a facility licensed under the ID/DD Community Care Act. (Source: P.A , eff ) (210 ILCS 32/10) Sec. 10. Authorized electronic monitoring. (a) A resident shall be permitted to conduct authorized electronic monitoring of the resident's 1

2 room through the use of electronic monitoring devices placed in the room pursuant to this Act. (b) Nothing in this Act shall be construed to allow the use of an electronic monitoring device to take still photographs or for the nonconsensual interception of private communications. (Source: P.A , eff ) (210 ILCS 32/15) Sec. 15. Consent. (a) Except as otherwise provided in this subsection, a resident, a resident's plenary guardian of the person, or the parent of a resident under the age of 18 must consent in writing on a notification and consent form prescribed by the Department to the authorized electronic monitoring in the resident's room. If the resident has not affirmatively objected to the authorized electronic monitoring and the resident's physician determines that the resident lacks the ability to understand and appreciate the nature and consequences of electronic monitoring, the following individuals may consent on behalf of the resident, in order of priority: (1) a health care agent named under the Illinois Power of Attorney Act; (2) a resident's representative, as defined in Section 5 of this Act; (3) the resident's spouse; (4) the resident's parent; (5) the resident's adult child who has the written consent of the other adult children of the resident to act as the sole decision maker regarding authorized electronic monitoring; or (6) the resident's adult brother or sister who has the written consent of the other adult siblings of the resident to act as the sole decision maker regarding authorized electronic monitoring. (a-5) Prior to another person, other than a resident's plenary guardian of the person, consenting on behalf of a resident 18 years of age or older in accordance with this Section, the resident must be asked by that person, in the presence of a facility employee, if he or she wants authorized electronic monitoring to be conducted. The person must explain to the resident: (1) the type of electronic monitoring device to be used; (2) the standard conditions that may be placed on the electronic monitoring device's use, including those listed in paragraph (7) of subsection (b) of Section 20; (3) with whom the recording may be shared according to Section 45; and 2

3 (4) the resident's ability to decline all recording. For the purposes of this subsection, a resident affirmatively objects when he or she orally, visually, or through the use of auxiliary aids or services declines authorized electronic monitoring. The resident's response must be documented on the notification and consent form. (b) A resident or roommate may consent to authorized electronic monitoring with any conditions of the resident's choosing, including, but not limited to, the list of standard conditions provided in paragraph (7) of subsection (b) of Section 20. A resident or roommate may request that the electronic monitoring device be turned off or the visual recording component of the electronic monitoring device be blocked at any time. (c) Prior to the authorized electronic monitoring, a resident must obtain the written consent of any other resident residing in the room on the notification and consent form prescribed by the Department. Except as otherwise provided in this subsection, a roommate, a roommate's plenary guardian of the person, or the parent of a roommate under the age of 18 must consent in writing to the authorized electronic monitoring in the resident's room. If the roommate has not affirmatively objected to the authorized electronic monitoring in accordance with subsection (a- 5) and the roommate's physician determines that the roommate lacks the ability to understand and appreciate the nature and consequences of electronic monitoring, the following individuals may consent on behalf of the roommate, in order of priority: (1) a health care agent named under the Illinois Power of Attorney Act; (2) a roommate's resident's representative, as defined in Section 5 of this Act; (3) the roommate's spouse; (4) the roommate's parent; (5) the roommate's adult child who has the written consent of the other adult children of the resident to act as the sole decision maker regarding authorized electronic monitoring; or (6) the roommate's adult brother or sister who has the written consent of the other adult siblings of the resident to act as the sole decision maker regarding authorized electronic monitoring. (c-5) Consent by a roommate under subsection (c) authorizes the resident's use of any recording obtained under this Act, as provided in Section 45 of this Act. (c-7) Any resident previously conducting authorized electronic monitoring must obtain consent from any new roommate before the resident may resume authorized electronic monitoring. If a new roommate does not consent to authorized electronic monitoring and the 3

4 resident conducting the authorized electronic monitoring does not remove or disable the electronic monitoring device, the facility may turn off the device. (d) Consent may be withdrawn by the resident or roommate at any time, and the withdrawal of consent shall be documented in the resident's clinical record. If a roommate withdraws consent and the resident conducting the authorized electronic monitoring does not remove or disable the electronic monitoring device, the facility may turn off the electronic monitoring device. (e) If a resident who is residing in a shared room wants to conduct authorized electronic monitoring and another resident living in or moving into the same shared room refuses to consent to the use of an electronic monitoring device, the facility shall make a reasonable attempt to accommodate the resident who wants to conduct authorized electronic monitoring. A facility has met the requirement to make a reasonable attempt to accommodate a resident who wants to conduct authorized electronic monitoring when upon notification that a roommate has not consented to the use of an electronic monitoring device in his or her room, the facility offers to move either resident to another shared room that is available at the time of the request. If a resident chooses to reside in a private room in order to accommodate the use of an electronic monitoring device, the resident must pay the private room rate. If a facility is unable to accommodate a resident due to lack of space, the facility must reevaluate the request every 2 weeks until the request is fulfilled. (Source: P.A , eff ) (210 ILCS 32/20) Sec. 20. Notice to the facility. (a) Authorized electronic monitoring may begin only after a notification and consent form prescribed by the Department has been completed and submitted to the facility. (b) A resident shall notify the facility in writing of his or her intent to install an electronic monitoring device by providing a completed notification and consent form prescribed by the Department that must include, at minimum, the following information: (1) the resident's signed consent to electronic monitoring or the signature of the person consenting on behalf of the resident in accordance with Section 15 of this Act; if a person other than the resident signs the consent form, the form must document the following: 4

5 (A) the date the resident was asked if he or she wants authorized electronic monitoring to be conducted in accordance with subsection (a-5) of Section 15; (B) who was present when the resident was asked; and (C) an acknowledgement that the resident did not affirmatively object; and (2) the resident's roommate's signed consent or the signature of the person consenting on behalf of the resident in accordance with Section 15 of this Act, if applicable, and any conditions placed on the roommate's consent; if a person other than the roommate signs the consent form, the form must document the following: (A) the date the roommate was asked if he or she wants authorized electronic monitoring to be conducted in accordance with subsection (a-5) of Section 15; (B) who was present when the roommate was asked; and (C) an acknowledgement that the roommate did not affirmatively object; and (3) the type of electronic monitoring device to be used; (4) any installation needs, such as mounting of a device to a wall or ceiling; (5) the proposed date of installation for scheduling purposes; (6) a copy of any contract for maintenance of the electronic monitoring device by a commercial entity; (7) a list of standard conditions or restrictions that the resident or a roommate may elect to place on use of the electronic monitoring device, including, but not limited to: (A) prohibiting audio recording; (B) prohibiting broadcasting of audio or video; (C) turning off the electronic monitoring device or blocking the visual recording component of the electronic monitoring device for the duration of an exam or procedure by a health care professional; (D) turning off the electronic monitoring device or blocking the visual recording component of the electronic monitoring device while dressing or bathing is performed; and (E) turning the electronic monitoring device off for the duration of a visit with a spiritual advisor, ombudsman, attorney, financial planner, intimate partner, or other visitor; and (8) any other condition or restriction elected by the resident or roommate on the use of an electronic monitoring device. 5

6 (c) A copy of the completed notification and consent form shall be placed in the resident's and any roommate's clinical record and a copy shall be provided to the resident and his or her roommate, if applicable. (d) The Department shall prescribe the notification and consent form required in this Section no later than 60 days after the effective date of this Act. If the Department has not prescribed such a form by that date, the Office of the Attorney General shall post a notification and consent form on its website for resident use until the Department has prescribed the form. (Source: P.A , eff ) (210 ILCS 32/25) Sec. 25. Cost and installation. (a) A resident choosing to conduct authorized electronic monitoring must do so at his or her own expense, including paying purchase, installation, maintenance, and removal costs. (b) If a resident chooses to install an electronic monitoring device that uses Internet technology for visual or audio monitoring, that resident is responsible for contracting with an Internet service provider. (c) The facility shall make a reasonable attempt to accommodate the resident's installation needs, including, but not limited to, allowing access to the facility's telecommunications or equipment room. A facility has the burden of proving that a requested accommodation is not reasonable. (d) The electronic monitoring device must be placed in a conspicuously visible location in the room. (e) A facility may not charge the resident a fee for the cost of electricity used by an electronic monitoring device. (f) All electronic monitoring device installations and supporting services shall comply with the requirements of the National Fire Protection Association (NFPA) 101 Life Safety Code (2000 edition). (Source: P.A , eff ) 6

7 (210 ILCS 32/27) Sec. 27. Assistance program. (a) Subject to appropriation, the Department shall establish a program to assist residents receiving medical assistance under Article V of the Illinois Public Aid Code in accessing authorized electronic monitoring. (b) The Department shall distribute up to $50,000 in funds on an annual basis to residents receiving medical assistance under Article V of the Illinois Public Aid Code for the purchase and installation of authorized electronic monitoring devices. (c) Applications for funds and disbursement of funds must be made in a manner prescribed by the Department. (Source: P.A , eff ) (210 ILCS 32/30) Sec. 30. Notice to visitors. (a) If a resident of a facility conducts authorized electronic monitoring, a sign shall be clearly and conspicuously posted at all building entrances accessible to visitors. The notice must be entitled "Electronic Monitoring" and must state, in large, easy-to-read type, "The rooms of some residents may be monitored electronically by or on behalf of the residents.". (b) A sign shall be clearly and conspicuously posted at the entrance to a resident's room where authorized electronic monitoring is being conducted. The notice must state, in large, easy-to-read type, "This room is electronically monitored.". (c) The facility is responsible for installing and maintaining the signage required in this Section. (Source: P.A , eff ) (210 ILCS 32/40) Sec. 40. Obstruction of electronic monitoring devices. (a) A person or entity is prohibited from knowingly hampering, obstructing, tampering with, or destroying an electronic monitoring device installed in a resident's room without the permission of the resident or the individual who consented on behalf of the resident in accordance with Section 15 of this Act. (b) A person or entity is prohibited from knowingly hampering, obstructing, tampering with, or 7

8 destroying a video or audio recording obtained in accordance with this Act without the permission of the resident or the individual who consented on behalf of the resident in accordance with Section 15 of this Act. (c) A person or entity that violates this Section is guilty of a Class B misdemeanor. A person or entity that violates this Section in the commission of or to conceal a misdemeanor offense is guilty of a Class A misdemeanor. A person or entity that violates this Section in the commission of or to conceal a felony offense is guilty of a Class 4 felony. (d) It is not a violation of this Section if a person or facility turns off the electronic monitoring device or blocks the visual recording component of the electronic monitoring device at the direction of the resident or the person who consented on behalf of the resident in accordance with Section 15 of this Act. (Source: P.A , eff ) (210 ILCS 32/45) Sec. 45. Dissemination of recordings. (a) A facility may not access any video or audio recording created through authorized electronic monitoring without the written consent of the resident or the person who consented on behalf of the resident in accordance with Section 15 of this Act. (b) Except as required under the Freedom of Information Act, a recording or copy of a recording made pursuant to this Act may only be disseminated for the purpose of addressing concerns relating to the health, safety, or welfare of a resident or residents. (c) The resident or person who consented on behalf of the resident in accordance with Section 15 of this Act shall provide a copy of any video or audio recording to parties involved in a civil, criminal, or administrative proceeding, upon a party's request, if the video or audio recording was made during the time period that the conduct at issue in the proceeding allegedly occurred. (Source: P.A , eff ) (210 ILCS 32/50) Sec. 50. Admissibility of evidence. Subject to applicable rules of evidence and procedure, any video or audio recording created through authorized electronic monitoring in accordance with this Act may be admitted into evidence in a civil, criminal, or administrative proceeding if the 8

9 contents of the recording have not been edited or artificially enhanced and the video recording includes the date and time the events occurred. (Source: P.A , eff ) (210 ILCS 32/55) Sec. 55. Report. Each facility shall report to the Department, in a manner prescribed by the Department, the number of authorized electronic monitoring notification and consent forms received annually. The Department shall report the total number of authorized electronic monitoring notification and consent forms received by facilities to the Office of the Attorney General annually. (Source: P.A , eff ) (210 ILCS 32/60) Sec. 60. Liability. (a) A facility is not civilly or criminally liable for the inadvertent or intentional disclosure of a recording by a resident or a person who consents on behalf of the resident for any purpose not authorized by this Act. (b) A facility is not civilly or criminally liable for a violation of a resident's right to privacy arising out of any electronic monitoring conducted pursuant to this Act. (Source: P.A , eff ) (210 ILCS 32/65) Sec. 65. Rules. The Department shall adopt rules necessary to implement this Act. (Source: P.A , eff ) (210 ILCS 32/70) Sec. 70. (Amendatory provisions; text omitted). (Source: P.A , eff ; text omitted.) (210 ILCS 32/75) Sec. 75. (Amendatory provisions; text omitted). (Source: P.A , eff ; text omitted.) 9

10 (210 ILCS 32/99) Sec. 99. Effective date. This Act takes effect January 1, (Source: P.A , eff ) 10

11 NEW MEXICO New Mexico Patient Care Monitoring Act AN ACT RELATING TO LONG-TERM CARE; ENACTING THE PATIENT CARE MONITORING ACT; ESTABLISHING AUTHORIZATION AND USE OF MONITORING DEVICES; PROVIDING FOR WAIVERS; PROVIDING FOR ENFORCEMENT AND PENALTIES. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: Section 1. SHORT TITLE.--This act may be cited as the "Patient Care Monitoring Act". Section 2. DEFINITIONS.--As used in the Patient Care Monitoring Act: A. "agency" means the state agency on aging; B. "facility" means a long-term care facility licensed pursuant to the provisions of Section NMSA 1978, other than an intermediate care facility for the mentally retarded, and may also include: (1) a skilled nursing facility; (2) an intermediate care nursing facility; (3) a nursing facility; (4) an adult residential shelter care home; (5) a boarding home; (6) any adult care home or adult residential care facility; and (7) any swing bed in an acute care facility or extended care facility; C. "monitoring device" means a surveillance instrument that broadcasts or records activity, but does not include a still camera; D. "patient" means a person who is a resident of a facility; E. "program" means the New Mexico long-term care ombudsman program; and F. "surrogate" means a legal guardian or a legally appointed substitute decisionmaker who is authorized to act on behalf of a patient. Section 3. MONITORING DEVICE--AUTHORIZATION AND USE.-- A. A patient or a surrogate may authorize installation and use of a monitoring device in a facility provided that: (1) the facility is given notice of the installation; 11

12 (2) if the monitoring device records activity visually, such recording shall include a record of the date and time; (3) the monitoring device and all installation and maintenance costs are paid for by the patient; and (4) written consent is given by each patient or surrogate of each patient occupying the same room. B. The patient may establish and the facility shall accommodate limits on the use, including the time of operation, direction, focus or volume, of a monitoring device. Section 4. MONITORING DEVICE OPTION--INSTALLATION--ACCOMMODATION BY FACILITY.-- A. At the time of admission to a facility, a patient shall be offered the option to have a monitoring device, and a record of the patient's authorization or choice not to have a monitoring device shall be kept by the facility and shall be made accessible to the program. B. After authorization, consent and notice, a patient or surrogate may install, operate and maintain a monitoring device in the patient's room at the patient's expense. C. The facility shall cooperate to accommodate the installation of the monitoring device, provided the installation does not place undue burden on the facility. Section 5. CONSENT--WAIVER.-- A. Consent to the authorization for the installation and use of a monitoring device may be given only by the patient or the surrogate. B. Consent to the authorization for the installation and use of a monitoring device shall include a release of liability for the facility for a violation of the patient's right to privacy insofar as the use of the monitoring device is concerned. C. A patient or the surrogate may reverse a choice to have or not have a monitoring device installed and used at any time, after notice to the facility and to the program upon a form prescribed by the agency. Section 6. AUTHORIZATION FORM--CONTENTS.--The form for the authorization of installation and use of a monitoring device shall provide for: 12

13 A. consent of the patient or the surrogate authorizing the installation and use of the monitoring device; B. notice to the facility of the patient's installation of a monitoring device and specifics as to its type, function and use; C. consent of any other patient or that patient's surrogate sharing the same room; D. notice of release from liability for privacy violation through the use of the monitoring device; and E. waiver of the patient's right to privacy in conjunction with the use of the monitoring device. Section 7. IMMUNITY--UNAUTHORIZED USE.-- A. In any civil action against the facility, material obtained through the use of a monitoring device may not be used if the monitoring device was installed or used without the knowledge of the facility or without the prescribed form. B. Compliance with the provisions of the Patient Care Monitoring Act shall be a complete defense against any civil or criminal action brought against the patient, surrogate or facility for the use or presence of a monitoring device. Section 8. NOTICE TO CURRENT PATIENTS.--Within six months of the effective date of the Patient Care Monitoring Act, all facilities shall provide to each patient or surrogate a form prescribed by the agency explaining the provisions of the Patient Care Monitoring Act and giving each patient or surrogate a choice to have a monitoring device installed in the patient's room. Copies of the completed form shall be kept by the facility and shall be made accessible to the program. Section 9. NOTICE.--The facility shall post a notice in a conspicuous place at the entrance to a room with a monitoring device that a monitoring device is in use in that room of the facility. Section 10. RULES.--The agency shall adopt rules necessary to implement the provisions of the Patient Care Monitoring Act. 13

14 Section 11. PROHIBITED ACTS.--No person or patient shall be denied admission to or discharged from a facility or be otherwise discriminated against or retaliated against because of a choice to authorize installation and use of a monitoring device. Any person who violates this section shall be subject to the provisions of Section NMSA Section 12. CRIMINAL ACTS.--Any person other than a patient or surrogate found guilty of intentionally hampering, obstructing, tampering with or destroying a monitoring device or a recording made by a monitoring device installed in a facility pursuant to the Patient Care Monitoring Act is guilty of a fourth degree felony and shall be sentenced pursuant to Section NMSA

15 UTAH Utah "Assisted Living Facility Surveillance Act." Effective 5/10/ Definitions. As used in this part: (1) "Facility" means an assisted living facility. (2) "Legal representative" means an individual who is legally authorized to make health care decisions on behalf of another individual. (3) (a) "Monitoring device" means: (i) a video surveillance camera; or (ii) a microphone or other device that captures audio. (b) "Monitoring device" does not include: (i) a device that is specifically intended to intercept wire, electronic, or oral communication without notice to or the consent of a party to the communication; or (ii) a device that is connected to the Internet or that is set up to transmit data via an electronic communication. (4) "Resident" means an individual who receives health care from a facility. (5) "Room" means a resident's private or shared primary living space. (6) "Roommate" means an individual sharing a room with a resident. Enacted by Chapter 141, 2016 General Session Effective 5/10/ Monitoring device -- Installation, notice, and consent Liability. (1) A resident or the resident's legal representative may operate or install a monitoring device in the resident's room if the resident and the resident's legal representative, if any, unless the resident is incapable of informed consent: (a) notifies the resident's facility in writing that the resident or the resident's legal representative, if any: (i) intends to operate or install a monitoring device in the resident's room; and (ii) consents to a waiver agreement, if required by a facility; 15

16 (b) obtains written consent from each of the resident's roommates, and their legal representative, if any, that specifically states the hours when each roommate consents to the resident or the resident's legal representative operating the monitoring device; and (c) assumes all responsibility for any cost related to installing or operating the monitoring device. (2) A facility shall not be civilly or criminally liable to: (a) a resident or resident's roommate for the operation of a monitoring device consistent with this part; and (b) any person other than the resident or resident's roommate for any claims related to the use or operation of a monitoring device consistent with this part, unless the claim is caused by the acts or omissions of an employee or agent of the facility. (3) Notwithstanding any other provision of this part, an individual may not, under this part, operate a monitoring device in a facility without a court order: (a) in secret; or (b) with an intent to intercept a wire, electronic, or oral communication without notice to or the consent of a party to the communication. Enacted by Chapter 141, 2016 General Session Effective 5/10/ Monitoring device -- Facility admission, patient discharge, and posted notice. (1) A facility may not deny an individual admission to the facility for the sole reason that the individual or the individual's legal representative requests to install or operate a monitoring device in the individual's room. (2) A facility may not discharge a resident for the sole reason that the resident or the resident's legal representative requests to install or operate a monitoring device in the individual's room. (3) A facility may require the resident or the resident's legal representative to place a sign near the entrance of the resident's room that states that the room contains a monitoring device. Enacted by Chapter 141, 2016 General Session 16

17 TEXAS HEALTH AND SAFETY CODE TITLE 4. HEALTH FACILITIES SUBTITLE B. LICENSING OF HEALTH FACILITIES CHAPTER 242. CONVALESCENT AND NURSING FACILITIES AND RELATED INSTITUTIONS SUBCHAPTER R. ELECTRONIC MONITORING OF RESIDENT'S ROOM Sec DEFINITIONS. In this subchapter: (1) "Authorized electronic monitoring" means the placement of an electronic monitoring device in the room of a resident of an institution and making tapes or recordings with the device after making a request to the institution to allow electronic monitoring. (2) "Electronic monitoring device": (A) includes: (i) video surveillance cameras installed in the room of a resident; and (ii) audio devices installed in the room of a resident designed to acquire communications or other sounds occurring in the room; and (B) does not include an electronic, mechanical, or other device that is specifically used for the nonconsensual interception of wire or electronic communications. Added by Acts 2001, 77th Leg., ch. 1224, Sec. 1, eff. June 15,

18 The following words and terms, when used in this chapter, have the following meaning, unless the context clearly indicates otherwise. (1) Abuse-- (A) for a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes, the term has the meaning in Texas Family Code (1), which is an intentional, knowing, or reckless act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program that causes or may cause emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy; and (B) for a person other than one described in subparagraph (A) of this paragraph, the term has the meaning in Texas Health and Safety Code 260A.001(1), which is: (i) the negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to a resident by the resident's caregiver, family member, or other individual who has an ongoing relationship with the resident; or (ii) sexual abuse of a resident, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Section 21.08, Penal Code (indecent exposure), or Chapter 22, Penal Code (assaultive offenses), committed by the resident's caregiver, family member, or other individual who has an ongoing relationship with the resident. (2) Accreditation commission--has the meaning given in Texas Health and Safety Code, (3) Advance directive--has the meaning given in Texas Health and Safety Code, (4) Affiliate--With respect to: (A) a partnership, each partner thereof; (B) a corporation, each officer, director, principal stockholder, subsidiary, and each person with a disclosable interest, as the term is defined in this section; and (C) a natural person: (i) said person's spouse; (ii) each partnership and each partner thereof of which said person or any affiliate of said person is a partner; and 18

19 (iii) each corporation in which said person is an officer, director, principal stockholder, or person with a disclosable interest. (5) Alzheimer's Assisted Living Disclosure Statement form--the DADS-prescribed form a facility uses to describe the nature of care or treatment of residents with Alzheimer's disease and related disorders. (6) Alzheimer's disease and related disorders--alzheimer's disease and any other irreversible dementia described by the Centers for Disease Control and Prevention (CDC) or the most current edition of the Diagnostic and Statistical Manual of Mental Disorders. (7) Alzheimer's facility--a type B assisted living facility that is certified to provide specialized services to residents with Alzheimer's or a related condition. (8) Applicant--A person applying for a license to operate an assisted living facility under Texas Health and Safety Code, Chapter 247. (9) Attendant--A facility employee who provides direct care to residents. This employee may serve other functions, including cook, janitor, porter, maid, laundry worker, security personnel, bookkeeper, activity director, and manager. (10) Authorized electronic monitoring (AEM)--The placement of an electronic monitoring device in a resident's room and using the device to make tapes or recordings after making a request to the facility to allow electronic monitoring. (11) Behavioral emergency--has the meaning given in 92.41(p)(2) of this chapter (relating to Standards for Type A and Type B Assisted Living Facilities). (12) Change of ownership--a change of ownership is: (A) a change of sole proprietorship that is licensed to operate a facility; (B) a change of 50 percent or more in the ownership of the business organization that is licensed to operate the facility; (C) a change in the federal taxpayer identification number; or (D) relinquishment by the license holder of the operation of the facility. (13) Commingles--The laundering of apparel or linens of two or more individuals together. (14) Controlling person--a person with the ability, acting alone or with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of an assisted living facility or other person. A controlling person includes: 19

20 (A) a management company, landlord, or other business entity that operates or contracts with others for the operation of an assisted living facility; (B) any person who is a controlling person of a management company or other business entity that operates an assisted living facility or that contracts with another person for the operation of an assisted living facility; (C) an officer or director of a publicly traded corporation that is, or that controls, a facility, management company, or other business entity described in subparagraph (A) of this paragraph but does not include a shareholder or lender of the publicly traded corporation; and (D) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of an assisted living facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility, except an employee, lender, secured creditor, landlord, or other person who does not exercise formal or actual influence or control over the operation of an assisted living facility. (15) Covert electronic monitoring--the placement and use of an electronic monitoring device that is not open and obvious, and the facility and DADS have not been informed about the device by the resident, by a person who placed the device in the room, or by a person who uses the device. (16) DADS--The Department of Aging and Disability Services. (17) DHS--Formerly, this term referred to the Texas Department of Human Services; it now refers to DADS. (18) Dietitian--A person who currently holds a license or provisional license issued by the Texas State Board of Examiners of Dietitians. (19) Disclosure statement--a DADS form for prospective residents or their legally authorized representatives that a facility must complete. The form contains information regarding the preadmission, admission, and discharge process; resident assessment and service plans; staffing patterns; the physical environment of the facility; resident activities; and facility services. (20) Electronic monitoring device--video surveillance cameras and audio devices installed in a resident's room, designed to acquire communications or other sounds that occur in the room. 20

21 An electronic, mechanical, or other device used specifically for the nonconsensual interception of wire or electronic communication is excluded from this definition. (21) Exploitation-- (A) for a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes, the term has the meaning in Texas Family Code (2), which is the illegal or improper use of a child or of the resources of a child for monetary or personal benefit, profit, or gain by an employee, volunteer, or other individual working under the auspices of a facility or program as further described by rule or policy; and (B) for a person other than one described in subparagraph (A) of this paragraph, the term has the meaning in Texas Health and Safety Code 260A.001(4), which is the illegal or improper act or process of a caregiver, family member, or other individual who has an ongoing relationship with the resident using the resources of a resident for monetary or personal benefit, profit, or gain without the informed consent of the resident. (22) Facility--An entity required to be licensed under the Assisted Living Facility Licensing Act, Texas Health and Safety Code, Chapter 247. (23) Fire suppression authority--the paid or volunteer fire-fighting organization or tactical unit that is responsible for fire suppression operations and related duties once a fire incident occurs within its jurisdiction. (24) Flame spread--the rate of fire travel along the surface of a material. This is different than other requirements for time-rated "burn through" resistance ratings, such as one-hour rated. Flame spread ratings are Class A (0-25), Class B (26-75), and Class C (76-200). (25) Governmental unit--the state or any county, municipality, or other political subdivision, or any department, division, board, or other agency of any of the foregoing. (26) Health care professional--an individual licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice. The term includes a physician, registered nurse, licensed vocational nurse, licensed dietitian, physical therapist, and occupational therapist. (27) Immediate threat--there is considered to be an immediate threat to the health or safety of a resident, or a situation is considered to put the health or safety of a resident in immediate jeopardy, if there is a situation in which an assisted living facility's noncompliance with one or 21

22 more requirements of licensure has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. (28) Immediately available--the capacity of facility staff to immediately respond to an emergency after being notified through a communication or alarm system. The staff are to be no more than 600 feet from the farthest resident and in the facility while on duty. (29) Large facility--a facility licensed for 17 or more residents. (30) Legally authorized representative--a person authorized by law to act on behalf of a person with regard to a matter described in this chapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult. (31) Listed--Equipment, materials, or services included in a list published by an organization concerned with evaluation of products or services, that maintains periodic inspection of production of listed equipment or materials or periodic evaluation of services, and whose listing states that either the equipment, material, or service meets appropriate designated standards or has been tested and found suitable for a specified purpose. The listing organization must be acceptable to the authority having jurisdiction, including DADS or any other state, federal or local authority. (32) Local code--a model building code adopted by the local building authority where the assisted living facility is constructed or located. (33) Management services--services provided under contract between the owner of a facility and a person to provide for the operation of a facility, including administration, staffing, maintenance, or delivery of resident services. Management services do not include contracts solely for maintenance, laundry, transportation, or food services. (34) Manager--The individual in charge of the day-to-day operation of the facility. (35) Medication-- Texas Administrative Code TITLE 40 PART 1 CHAPTER 92 SOCIAL SERVICES AND ASSISTANCE DEPARTMENT OF AGING AND DISABILITY SERVICES LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES 22

23 SUBCHAPTER A RULE 92.2 INTRODUCTION Definitions (A) Medication is any substance: (i) recognized as a drug in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Texas Drug Code Index or official National Formulary, or any supplement to any of these official documents; (ii) intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease; (iii) other than food intended to affect the structure or any function of the body; and (iv) intended for use as a component of any substance specified in this definition. (B) Medication includes both prescription and over-the-counter medication, unless otherwise specified. (C) Medication does not include devices or their components, parts, or accessories. (36) Medication administration--the direct application of a medication or drug to the body of a resident by an individual legally allowed to administer medication in the state of Texas. (37) Medication assistance or supervision--the assistance or supervision of the medication regimen by facility staff. Refer to 92.41(j) of this chapter. (38) Medication (self-administration)--the capability of a resident to administer the resident's own medication or treatments without assistance from the facility staff. (39) Neglect-- (A) for a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes, the term has the meaning in Texas Family Code, (3), which is a negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy; and (B) for a person other than one described in subparagraph (A) of this paragraph, the term has the meaning in Texas Health and Safety Code 260A.001(6), which is the failure to provide for one's self the goods or services, including medical services, which are necessary to avoid 23

24 physical or emotional harm or pain or the failure of a caregiver to provide such goods or services. (40) NFPA 101--The 2000 publication titled "NFPA 101 Life Safety Code" published by the National Fire Protection Association, Inc., 1 Batterymarch Park, Quincy, Massachusetts (41) Ombudsman--Has the meaning given in 85.2 of this title (relating to Definitions). (42) Person--Any individual, firm, partnership, corporation, association, or joint stock association, and the legal successor thereof. (43) Person with a disclosable interest--any person who owns 5.0 percent interest in any corporation, partnership, or other business entity that is required to be licensed under Texas Health and Safety Code, Chapter 247. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company unless such entity participates in the management of the facility. (44) Personal care services--assistance with feeding, dressing, moving, bathing, or other personal needs or maintenance; or general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his or her personal life, regardless of whether a guardian has been appointed for the person. (45) Physician--A practitioner licensed by the Texas Medical Board. (46) Practitioner--An individual who is currently licensed in a state in which the individual practices as a physician, dentist, podiatrist, or a physician assistant; or a registered nurse approved by the Texas Board of Nursing to practice as an advanced practice registered nurse. (47) Qualified medical personnel--an individual who is licensed, certified, or otherwise authorized to administer health care. The term includes a physician, registered nurse, and licensed vocational nurse. (48) Resident--An individual accepted for care in a facility. (49) Respite--The provision by a facility of room, board, and care at the level ordinarily provided for permanent residents of the facility to a person for not more than 60 days for each stay in the facility. (50) Restraint hold-- (A) A manual method, except for physical guidance or prompting of brief duration, used to restrict: 24

25 (i) free movement or normal functioning of all or a portion of a resident's body; or (ii) normal access by a resident to a portion of the resident's body. (B) Physical guidance or prompting of brief duration becomes a restraint if the resident resists the guidance or prompting. (51) Restraints--Chemical restraints are psychoactive drugs administered for the purposes of discipline or convenience and are not required to treat the resident's medical symptoms. Physical restraints are any manual method, or physical or mechanical device, material, or equipment attached or adjacent to the resident that restricts freedom of movement. Physical restraints include restraint holds. (52) Safety--Protection from injury or loss of life due to such conditions as fire, electrical hazard, unsafe building or site conditions, and the hazardous presence of toxic fumes and materials. (53) Seclusion--The involuntary separation of a resident from other residents and the placement of the resident alone in an area from which the resident is prevented from leaving. (54) Service plan--a written description of the medical care, supervision, or nonmedical care needed by a resident. (55) Short-term acute episode--an illness of less than 30 days duration. (56) Small facility--a facility licensed for 16 or fewer residents. (57) Staff--Employees of an assisted living facility. (58) Standards--The minimum conditions, requirements, and criteria established in this chapter with which a facility must comply to be licensed under this chapter. (59) Terminal condition--a medical diagnosis, certified by a physician, of an illness that will result in death in six months or less. (60) Universal precautions--an approach to infection control in which blood, any body fluids visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids are treated as if known to be infectious for HIV, hepatitis B, and other blood-borne pathogens. (61) Vaccine Preventable Diseases--The diseases included in the most current recommendations of the Advisory Committee on Immunization Practices of the CDC. (62) Working day--any 24-hour period, Monday through Friday, excluding state and federal holidays. 25

26 OKLAHOMA Definitions. As used in this act: 1. "Authorized electronic monitoring" means the placement of electronic monitoring devices in the common areas or room of a resident of a nursing facility and the tapes or recordings from such devices pursuant to the provisions of this act; 2. "Authorized electronic monitoring devices" means: a. video surveillance cameras installed in the common areas or resident's room under the provisions of this act, or b. audio devices installed in the room of a resident under the provisions of this act that are designed to acquire communications or other sounds occurring in the room; 3. "Nursing facility" means the term as defined in Section of Title 63 of the Oklahoma Statutes; 4. "Representative of a resident" means the term as is defined in Section of Title 63 of the Oklahoma Statutes; 5. "Resident" means the term as is defined in Section of Title 63 of the Oklahoma Statutes; and 6. "Unauthorized electronic monitoring" means electronic, mechanical, or other devices that do not meet the provisions of this act and that are specifically used for the nonconsensual interception of wire or electronic communications. Added by Laws 2013, c. 204, 1, eff. Nov. 1, Notice of electronic monitoring - Refusal to admit - Signs. A. A nursing facility shall provide written notice to each resident, or to the representative of a resident, that authorized electronic monitoring of a resident s room conducted under the provisions of this act is not compulsory and shall only be conducted with the written consent of the resident or the representative of the resident. B. A nursing facility shall not refuse to admit an individual to residency in the facility and shall not remove a resident from a facility because of authorized electronic monitoring of a resident s room. 26

27 C. A nursing facility shall post at or near its main entrances a sign that clearly states that electronic monitoring and audio devices may be in use in the facility. Added by Laws 2013, c. 204, 2, eff. Nov. 1, Obstruction of electronic monitoring devices - Penalties. A. No person or entity shall intentionally hamper, obstruct, tamper with, or destroy an electronic monitoring device installed in a nursing facility. B. Any person or entity that intentionally hampers, obstructs, tampers with, or destroys a recording or an electronic monitoring device installed in a nursing facility shall be subject to the penalties prescribed in Section 1993 of Title 21 of the Oklahoma Statutes. C. No person or entity shall intercept a communication or disclose or use an intercepted communication of an electronic monitoring device placed or installed in a common area of a nursing facility without the express written consent of the facility, or, for an electronic monitoring device installed in a resident s room, the express written consent of the resident or the representative of the resident. Added by Laws 2013, c. 204, 3, eff. Nov. 1, Admission into evidence. Subject to the provisions of law, a tape or recording created through the use of authorized electronic monitoring pursuant to this act may be admitted into evidence in a civil or criminal court action or administrative proceeding. Added by Laws 2013, c. 204, 4, eff. Nov. 1, Electronic monitoring in nursing homes. A. A resident or the representative of a resident may conduct authorized electronic monitoring of the resident s room through the use of authorized electronic monitoring devices placed in the room pursuant to the provisions of this act at the expense of such person or representative of the resident and with the written consent of any other resident living in the room. B. A resident who conducts authorized electronic monitoring or the representative of the resident may post and maintain a notice at the entrance to the resident s room stating that the room is being monitored by an electronic monitoring device. 27